Paterson v Police

[2012] NZHC 2759

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000254 [2012] NZHC 2759

BETWEEN  ADAM PATERSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 October 2012

Counsel:         D J K Mitchell for the Appellant

E M Fitzherbert for the Respondent

Judgment:      9 October 2012

(ORAL) JUDGMENT OF DUFFY J [Re Appeal Against Sentence]

Solicitors:

Turner Hopkins P O Box 33237 Takapuna Auckland 0740 (DX BP66504) for the Appellant

Meredith Connell P O Box 2213 Shortland Street Auckland 1140 (DX CP24063) for the Respondent

PATERSON V NEW ZEALAND POLICE HC AK CRI-2012-404-000254 [9 October 2012]

[1]      The appellant, Adam Paterson, pleaded guilty to a single charge of driving with an excess breath alcohol concentration.   He was sentenced to 150 hours’ community work and 12 months’ supervision by Judge Dawson in the North Shore District Court.  He was also disqualified from holding a driver ’s licence.  Given that this was his second offence in the high breath alcohol level, the disqualification was for an indefinite period of time.

[2]      Mr Paterson now appeals the community work and supervision sentences on the grounds that these are manifestly excessive.

Facts

[3]      The facts of the offending are as follows.  On 23 June 2012 at approximately

11.30 pm, Mr Paterson was stopped by Police while driving.   He had a breath alcohol reading of 1,089 micrograms of alcohol per litre of breath, which was more than two and a half times over the legal limit.  This is an offence pursuant to s 56(1) of the Land Transport Act 1998; it is punishable under s 56(3) by a maximum penalty of three months’ imprisonment or a fine not exceeding $4,500. Disqualification from driving is mandatory.

District Court sentence

[4]      In the District Court, Judge Dawson considered there were two features aggravating the offending: the extent of Mr Paterson’s intoxication; and the fact that he  had  a  conviction  for  the  same  offending  in  July  2010.    The  Judge  noted Mr Paterson’s early guilty plea and took this into account.

[5]      At [5], the Judge referred to the relevant principles of sentencing:

You need to be held accountable for your behaviour, Mr Paterson, because you have chosen to drive after drinking at an excessive level, which means that you have put other people at risk for their lives and safety.  None of us have the right to do that, and because of  that certain penalties must be imposed to bring home the seriousness of your offending to you and to others, and to act  as  a deterrent to stop  people from driving in  similar circumstances.

[6]      It is notable that the Judge did not refer to s 13 of the Sentencing Act 2002. This provision provides that where the Court may impose a fine, in addition to, or instead of any other sentence, it must nevertheless regard a fine as the appropriate sentence, unless satisfied that, the purpose or purposes for which the sentence is being imposed cannot be achieved by imposing a fine.  There is no express reference to s 13 in Judge Dawson’s sentencing notes, despite it being a relevant consideration for the Judge to address.

[7]      The respondent submitted today that I could, by inference, read into [5] of the Judge’s sentencing notes a reference to him having considered s 13.   I am not satisfied that [5] of the sentencing notes can be read in this way.  I consider that the references to holding Mr Paterson accountable for his behaviour are more readily understood as being references to the general purposes in s 7 of the Sentencing Act which include accountability.  I also note that in the sentencing notes, the Judge did not make any reference to Mr Paterson’s personal circumstances, his employment and his ability to pay a fine.  I consider that if the Judge had turned his mind to s 13, he would necessarily have had to refer to those factors as part of this assessment.

[8]      The information available to me shows that Mr Paterson can pay a fine. Whilst he has provided this information to me by way of an affidavit I understand that it was conveyed to the sentencing Judge in the District Court.  Mr Paterson is self-employed; he runs a business providing hardware products for windows and doors from a rural area in the Auckland region (Coatesville).  His loss of licence and his  involvement  in  his  business  mean  that  he  would  have  difficulty  both  with transport and finding the time to attend supervision and to perform community work. Thus, there is every indication that a fine is the more appropriate penalty.

[9]      His earlier conviction for driving with excess blood alcohol resulted in a fine of $600 and he was disqualified from driving for six months.   Since his recent appearance  in  the  District  Court,  he  has  completed  a  programme  with  the Community Alcohol and Drug Services; a copy of the certificate of attendance is attached to his affidavit.

[10]     Mr Paterson’s counsel has referred me to a number of cases, all of which

suggest that a fine for a second drink driving offence is a more appropriate sentence.

[11]     The respondent accepts that in light of the authorities the imposition of a substantial fine is the usual sentence in the case of a second conviction for offending of this nature.   However, the respondent submits that it does not follow that a sentence of community work will always be manifestly excessive, though, in this case, the respondent appears to have acknowledged (responsibly so in my view) that the combination of the sentence of community work and supervision is inappropriate and makes the sentence one that is manifestly excessive.

[12]     The respondent has sought to argue that whilst it might be appropriate to quash the sentence of supervision, a sentence of community work would be appropriate.  However,  the respondent has also submitted that if the Court is of a mind to impose a fine, rather than community work, a fine in the vicinity of $2,000 to $2,500 would be appropriate.

[13]     I am grateful to counsel for the number of helpful decisions which they have cited  dealing  with  the  appropriate  sentence  for  second  offences  of  this  nature. Having  considered  the  authorities,  I  have  decided  that  there  are  three  which  I consider are most appropriately comparable to the present case.

[14]     The first is Jones v Police HC Auckland CRI 2007-404-325, 21 February

2008.  In that case, Ms Jones appealed a sentence of 120 hours’ community work and six months’ disqualification imposed for her second conviction for excess breath alcohol (911 micrograms per litre of breath).   She had been reported driving erratically.    She  appealed  on  the  basis  that  a  fine,  rather  than  a  sentence  of community work plus disqualification, should have been imposed.

[15]     In the High Court, Stevens J referred to s 13 of the Sentencing Act;   he expressly noted the purposes of denunciation and protection of the community.  He took into account Ms Jones’ personal circumstances (her previous conviction was more than eight years prior) and her employment circumstances made it difficult for

her to complete community work.  Stevens J substituted a sentence of a $2,000 fine and a nine month period of disqualification.

[16]     In Wright v Police HC Christchurch A104/02, 4 October 2002, the appellant was found to be driving with 546 micrograms of alcohol per litre of breath.  He was sentenced to 260 hours of community work, 12 months’ disqualification and his car was confiscated.   He had one prior conviction of a like breach from several years earlier.   He appealed primarily against his sentence of community work, although submissions were also made to the period of disqualification.

[17]     In the District Court, the Judge failed to consider s 13 of the Sentencing Act. Here, there was nothing ruling out a fine, and Panckhurst J said at [6] that the appellant’s   “full-time   employment   dictated   that   a   fine   was   appropriate”. Panckhurst J was in no doubt that “a fine is the normal and appropriate penalty for this offence”. Accordingly, the sentence of community work was quashed and a fine of $1,000 substituted.

[18]     In Singh v Police HC Auckland CRI-2010-404-340, 22 November 2010, Mr Singh was reported by a member of the public to be driving erratically.  He had a breath alcohol level of 1,132 micrograms of alcohol per litre of breath and it was his first conviction of this nature.  In the District Court, he was sentenced to 240 hours of community work and disqualified from holding a licence for 15 months.   On appeal, Venning J reduced the sentence to one of 200 hours’ community work and 12 months’ disqualification.  However, in that case, I note that at the time Mr Singh was working only part-time – he had previously worked as a taxi driver – but at the time of  the  sentencing,  he  was  working  part-time  as  a  tax  accountant,  and  at  [11], Venning J noted that a substantial fine may have been difficult to meet.   Further, Mr Singh had carried out 192 hours of the sentence of community work.  Whilst the concentration of alcohol was similar to Mr Paterson’s, those other factors seem to me to distinguish Mr Singh’s case from Mr Paterson’s case.

[19]     I consider that this is a case where I can readily intervene in regards to sentence.   I am satisfied that the sentence imposed was one that was manifestly excessive and well out of kilter with sentences that are imposed for a second offence.

I also consider that the sentencing process was materially flawed by the Judge’s failure to consider the imposition of a fine in terms of the requirements of s 13.  I am satisfied, therefore, that there is a proper basis for this Court to allow the appeal and to re-sentence Mr Paterson.

[20]     The starting point must be s 13, which provides:

13       Sentence of fine

(1)       If a court is lawfully entitled under this or any other enactment to impose a fine in addition to, or instead of, any other sentence, the court must regard a fine as the appropriate sentence for the particular offence unless—

(a)       the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine; or

(b)       the  court  is  satisfied  that  the  application  of  any  of  the principles in section 8 to the particular case make a fine inappropriate; or

(c)       any provision applicable to the particular offence in this or any other enactment provides a presumption in favour of imposing any other sentence or requires the court to impose any other sentence; or

(d)       the court is satisfied that a fine, on its own or in addition to a sentence   of   reparation,   would   otherwise   be   clearly inadequate in the circumstances.

[21]     Thus, a court is entitled to impose a fine and must regard  a fine as the presumptively appropriate sentence.   This presumption  can only be displaced if either a fine is inappropriate for any of the reasons set out in s 13(1)(a)-(b), or the offender does not, or will not have the means to pay a fine.

[22]     I consider that in the particular circumstances of this case, a fine is the appropriate sentence, for the following reasons:

(a)       Mr Paterson has the means to pay a fine;

(b)      Mr Paterson has made rehabilitative efforts;

(c)      While Mr Paterson was severely intoxicated, he was not intending to drive his car on the open road for any distance; he was merely moving it to avoid it being towed.  While the risk to public safety should not be downplayed, the present situation is materially different from that, for example in Singh, where Mr Singh drove erratically and dangerously and was reported by a member of the public; and

(d)Mr Paterson has a fledgling business which will be significantly hampered by his disqualification.   A sentence of community work, when Mr Paterson does not have the means to travel to and from any site, is not sensible.  I consider that the appropriate approach is that followed  in  Wright  and  Jones,  where  the  offenders’ employment situations were given weight when considering whether community work was apt.

[23]     Counting  against  these  factors,  there  are  the  aggravating  features  of Mr Paterson’s  relatively  recent  earlier  conviction,  and  the  extreme  level  of  his intoxication.   This leads me to conclude that the fine to be imposed needs to be towards the top of the range proposed by the Crown.  Here, the Crown has proposed a range of $2,000 to $2,500.

[24]     In  reply submissions,  Mr Paterson’s  counsel  has  suggested  a  fine in  the vicinity of $2,250.   I consider this to be a responsible position to take.   Whilst a heavy fine needs to be imposed, and I am told that Mr Paterson has savings from which he can pay such a fine, I note that the income he presently receives from his business is a modest income.

[25]     I   consider   that   an   appropriate   sentence   that   reflects   the   necessary accountability, deterrence and denunciation, whilst bearing in mind the need to impose the least restrictive sentencing outcome and the requirements of s 13, is a fine of $2,250.

Result

[26]     Accordingly,  I  quash  the  sentence  of  supervision  and  the  sentence  of community work.  In its place, I impose a fine of $2,250.  The disqualification from driving still stands.

[27]     There was no appeal against the disqualification, but it is necessary to modify the disqualification sentence to refer to the New Zealand Transport Agency, rather than the Director of Land Transport, as being the entity able to determine when Mr Paterson will be able to drive again.

[28]     The  order  to  attend  the  assessment  centre  pursuant  to  s  65  of  the

Land Transport Act stands.

Duffy J